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Fermora Pty Ltd v Kelvedon Pty Ltd

Fermora Pty Ltd v Kelvedon Pty Ltd

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Case Copied 13 October 2011 40 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FERMORA PTY LTD -v- KELVEDON PTY LTD [2011] WASC 281

CORAM: EDELMAN J

HEARD: 16 SEPTEMBER 2011

DELIVERED : 13 OCTOBER 2011

FILE NO/S: CIV 2455 of 2010

BETWEEN: FERMORA PTY LTD
Plaintiff
AND
KELVEDON PTY LTD
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Real property - Easements - Whether easement abandoned - Whether terminated by agreement - Whether terminated by operation of condition subsequent - Whether obsolete - Section 129C Transfer of Land Act 1893 (WA)

Evidence - Torrens system land - Easements - Construction of easement - Evidence of unregistered deed, purportedly incorporated in the grant - Unregistered deed conferring new rights and liberties and inconsistent with the deed of grant - Whether the unregistered deed is admissible evidence for the construction of the deed of grant

Limitation - Limitation Act 1921 (WA) - Meaning of 'an action to recover any land' - Meaning of 'corporeal hereditaments ... and any share, estate, or interest in them'

Legislation:

Transfer of Land Act 1893 (WA), s 129C
Limitation Act 1935 (WA), s 3, s 4, s 5

Result:

Easement not discharged

Category: A

Representation:

Counsel:

Plaintiff:     Mr P G Clifford
First Defendant             :     Mr D R Williams QC & Mr I C Rogers
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Lawton Gillon
First Defendant             :     Hardy Bowen
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Berryman v Sonnenschein [2008] NSWSC 213
Black v Garnock [2007] HCA 31; (2007) 230 CLR 438
Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376
C Hunton Ltd v Swire [1969] NZLR 232
Chiu v Healey (2003) 11 BPR 21,241; [2003] NSWSC 857
Commonwealth Bank of Australia v Cluness Matter No 3038/96 [1997] NSWSC 222
Davidson v Elkington [2011] WASC 29
Ecclesiastical Commissioners for England v Kino (1880) 14 Ch D 213
Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Ferella v Otvosi [2005] NSWSC 962
Gallagher v Rainbow [1994] HCA 24; (1994) 179 CLR 624
Grill v Hockey (1991) 5 BPR 11,421
Halloran v Minister Administering National Parks and Wildlife Act 1974 [2006] HCA 3; (2006) 229 CLR 545
Lief Investments Pty Ltd v Conagra International Fertiliser Company [1998] NSWSC 481
Lolakis v Konitsas [2002] NSWSC 889
Long v Michie [2003] NSWSC 233
Markos v OR Autor Pty Ltd [2007] NSWSC 810
Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54
Pearce v City of Hobart [1981] Tas R 334
Pekel v Humich [1999] WASC 65
Perpetual Trustees Executors & Agency Company of Tasmania Ltd v Walker [1953] HCA 21; (1953) 90 CLR 270
Pieper v Edwards [1982] 1 NSWLR 336
Re Eddowes (Unreported, QSC, 12 October 1990)
Re Miscamble's Application [1966] VR 596
RK Roseblade & VM Roseblade and the Conveyancing Act [1964‑5] NSWR 2044
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Shelbina Pty Ltd v Richards [2009] NSWSC 1449

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WASC 281
Decision Date: 13 OCTOBER 2011

CaseChat Overview and Summary

Fermora Pty Ltd, the owner of a parcel of Torrens title land, brought proceedings against Kelvedon Pty Ltd, the owner of an adjoining parcel of land, concerning the existence of an easement over the Kelvedon land for the purpose of accessing a shared driveway. The dispute came before the Supreme Court of Western Australia. The primary issues were whether the easement had been abandoned, terminated by agreement, terminated by operation of a condition subsequent, or rendered obsolete. Additionally, the court considered whether an unregistered deed, purportedly incorporated into the grant, was admissible to construct the deed of grant, and the interpretation of certain terms in the Limitation Act 1921 (WA).

The court examined the evidence and concluded that the easement had not been abandoned, terminated by agreement, or rendered obsolete. Regarding the unregistered deed, the court held that it was admissible as evidence to assist in the construction of the deed of grant, despite the deed conferring new rights and liberties inconsistent with the deed of grant. As for the limitation period, the court found that the easement was not subject to the limitation period provided by section 129C of the Transfer of Land Act 1893 (WA), as it did not constitute an action to recover any land or a corporeal hereditament, but rather an action to enforce an existing right.

The court ordered that the easement over the Kelvedon land for the purpose of accessing the shared driveway was valid and enforceable. The court also found that the unregistered deed was admissible for the purpose of constructing the deed of grant, and that the easement was not subject to the limitation period provided by section 129C of the Transfer of Land Act 1893 (WA). The court further found that the easement was not subject to the limitation period provided by the Limitation Act 1921 (WA), as it did not constitute an action to recover any land or a corporeal hereditament.

Orders